Online Reviewers Face Feds Over Right to Stay Anonymous

U.S. seeking identities of commenters critical of a
veterans health-care company under investigation

By Jacob Gershman and
Joe Palazzolo June 16, 2017 11:05 a.m. ET

The Justice Department is clashing with career site
Glassdoor Inc. over the company’s refusal to identify users who posted
anonymous employee reviews of a veterans health-care company under federal
investigation.

The First Amendment standoff—the existence of which was
disclosed in court papers unsealed this week—has opened a new front in the
national debate over online anonymity.

The right of online reviewers and commenters to stay
anonymous has been tested in civil cases, typically ones dealing with defamation
claims.

The case involving Mill Valley, Calif.-based Glassdoor is
different: The party seeking the user information isn’t an aggrieved plaintiff
but the federal government deploying the power of a criminal grand jury
subpoena. The dispute pits the right of an internet poster to remain anonymous
against the government’s interests in finding potential witnesses to a crime.

Glassdoor, founded in 2007, is a jobs-and-recruitment
marketplace that offers a forum for users to critique their workplace, giving
job seekers a view from the inside of their prospective employers.

The confrontation began in early March, when federal
prosecutors in Arizona sent Glassdoor a grand jury subpoena seeking the names
and IP addresses of users who had posted comments about TriWest Healthcare
Alliance, a Phoenix-based company that administers veterans health-care
programs.

The government contends it has no other way to identify
employees who might have useful insights into TriWest’s business practices.

Glassdoor says the government’s interests don’t justify
an “infringement on the First Amendment right of Glassdoor’s users to speak
anonymously” that could discourage other reviewers and readers from using the
site.

TriWest’s name is redacted from the court documents, but
the filings contain enough information to identify the contractor. The investigation
is looking at possible wire fraud and misuse of government funds, according to
court documents.

Elaine Labedz, vice president of communications for
TriWest, said the company hasn’t been contacted by government investigators and
declined to comment on “anonymous postings on social media.”

Cosme Lopez, a spokesman for acting U.S. Attorney
Elizabeth Strange in Arizona, declined to comment on the nature of the
investigation or its target. “Our investigation is at the early stages,” he
said.

With the subpoena, prosecutors sought to identify and
speak with a handful of employees who posted comments about the contractor,
describing them in court documents as “witnesses to potential unlawful
conduct.”

Outside lawyers retained by Glassdoor said the company
still wouldn’t turn over the information and filed a motion in Arizona federal
court to quash the subpoena.

They argue in court papers that the government lacks a
compelling need to identify the users. Revealing them, company lawyers said,
“may have a broader chilling effect on protected expression.”

Prosecutors characterize the information sought as
“apolitical” commercial speech that doesn’t warrant special First Amendment
protection.

In court papers, the Justice Department compared
Glassdoor to a news outlet resisting disclosure of the identity of a
confidential source. In both cases, prosecutors argued, there is limited First
Amendment protection. The government cited a landmark Supreme Court ruling from
1972 that held that the First Amendment “does not relieve a newspaper reporter
of the obligation…to respond to a grand jury subpoena.”

U.S. District Judge Diane Humetewa of Arizona agreed with
the government.

“Glassdoor’s users are not a political association,”
Judge Humetewa wrote in an opinion issued in May and unsealed Monday.
“Glassdoor, like any newsman asserting a privilege on behalf of its sources,
must respond to the grand jury subpoena,” she said.

Glassdoor has appealed her ruling to the Ninth U.S.
Circuit Court of Appeals in San Francisco, where the case will be briefed and
argued.

In a statement, Glassdoor objected to the judge’s First
Amendment analysis, calling an individual’s right to anonymous speech “a
cornerstone of our society that inherently helps others and should be
protected.”

American University law professor Jennifer Daskal, who
writes on issues related to privacy and criminal law, called the law around the
government’s ability to lift the veil on anonymous online speech “pretty
unresolved.”

She said the case is about the right of “people to speak
anonymously on a range of a different websites without running the risk of
revealing their identity to the government.”

Glassdoor has successfully challenged attempts by private
plaintiffs to unmask the identities of anonymous reviewers in connection with
defamation lawsuits. Courts held that the First Amendment concerns, or a lack
of merit in the lawsuits, weighed in favor of protecting the reviewers’
identities.

The court documents contain few details about the
investigation of TriWest. Prosecutors said in a legal brief that they wanted to
speak with employees about “practices that maximize profit numbers.”

The court filings contain a snippet of a Glassdoor review
posted on Nov. 30, 2015, in which an employee of the contractor wrote that “all
they care about is numbers.”

The Wall Street Journal located comments by a TriWest
employee published on Glassdoor on that same date. “Everything is supposedly
‘for the Veterans’ but all they care about is numbers,” the reviewer wrote.

The Department of Veterans Affairs awarded contracts
valued at more than $4 billion to TriWest in 2013 and 2014 to administer
programs that connect veterans to medical services outside the VA system,
helping them avoid long wait times or having to travel long distances.

Congress authorized the $10 billion Veterans Choice
Program after reports surfaced of veterans dying while waiting for medical
care. President Donald Trump signed a law extending the program in April.

The Veteran Affairs Office of the Inspector General wrote
in a January report that the program had done little to reduce wait times and
was difficult for veterans to navigate.

Ms. Labedz, the TriWest spokeswoman, said the inspector
general report was “outdated.” The company has scheduled more than two million
first-time appointments for veterans, with an average wait time of 13 days, she
said.

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